Dismissed

The Oriental Insurance Company Limited, Visakhapatnam. v. Muttireddi Mahesh and 2 Others

Andhra Pradesh HC3 Oct 2024MACMA/2452/2006

Case brief

AI extract

What is this about?

This MCCAA challenged the Motor Accidents Claims Tribunal's award of Rs.65,600 compensation to an injured cleaner who drove a Jeep without a license, arguing insurance invalidity. The High Court upheld the insurance liability despite the breach but enhanced the compensation to Rs.1,37,600 based on minimum wages.

What did the court decide?

The compensation is enhanced from Rs.65,600 to Rs.1,37,600. Respondents held jointly and severally liable to pay the difference with interest.

The Oriental Insurance Company Limited… — Motor Accident Claims | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY ,THE FOURTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2452 OF 2006

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Appeal filed under Section 173 of M.V Act, being aggrieved by the order and decree passed in O.P No. 10/2005 on the file of the Chairman, Motor Accidents Claims Tribunal cum I Additional District Judge, Vizianagaram dated 1506-2006. -^

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Between:

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The Oriental Insurance Company Limited, Rep. by its Divisional Manager, Divisional Manager, Dwaraka Nagar, Visakhapatnam

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...Appellant/Respondent -3

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AND

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Muttireddi Mahesh, S/o Lakshmi Narayana, Cleaner R/o Vedullavalasa Village, Garividi Mandal, Vizianagaram Dist.

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B.Ganesh, S/o Latchaiah Driver of Jeep No. AP 31 X 4887 R/o Boddam Village, Rajam Mandal, Srikakulam District.

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B. Appa Rao, S/o late Appala Naidu Owner of Jeep No. AP 31 X 4887 R/o 37-10-155, Ayyappa Nagar, Visakhapatnam.

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...Respondents/R-1 & 2

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I.A. NO: 1 OF 2006(MACMAMP. NO: 5871 OF 2006)

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, . Petition under Section 151 CPC praying that in^{thecircumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased stay all further proceedings in pursuance of^{theorderanddecree} passed in OP.NO. 10/05 on the file of the Chairman, MACT cum I Addi. District Judge, Vizianagaram, dated 15-6-06 pending disposal of main MACMA

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Counsel for the Appellant: Sri. B Paramesewara Rao

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Counsel for the RespondentNo.1 : Ms. Sowmya representing^Sri.Taddi Nageswara Rao

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The Court made the following: JUDGMENT

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APHC010153962006

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY, THE FOURTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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3459

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L^Jpresent

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THE HON'BLE SMT. JUSTICE SUMATHI JAGADAM

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.2452 OF²⁰⁰⁶

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Between:

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The Oriental Insurance Company Limited, Rep. by its Divisional Manager, Dwaraka Nagar, Visakhapatnam. Appellant and

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Muttireddi Mahesh, S/o.Lakshmi Narayana, Aged 22 Years, Cleaner, R/o.Vedullavalasa Village, Garividi Mandal, Vizianagaram District and two others. Respondents Counsel for the appellant Mr. B. Parameswara Rao. Counsel for the respondent No.l. Ms. T. Sowmya, Rep. Mr. T. Nageswara Rao. Counsel for the respondent Nos.2 86 3

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The Court made the following Judgment;

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Challenge in this Motor Aecidents Civil Miscellaneous Appeal is to the Order, dated 15.06.2006, in O.P. No.^10of2005on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I

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JS,J MACMA No.2452/2006

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Additional District Judge, Vizianagaram (for short, ‘the Tribunal’) whereunder the Tribunal, dealing with the claim laid under Section 163-A of the Motor Vehicles Act, 1988 (for short, ‘the MV Act’) for a sum of Rs.2,00,000/- as compensation with regard to the injuries sustained by the petitioner in a motor vehicle accident occurred on 09.12.2004, awarded a sum of Rs.65,600/as compensation with interest at 7.5% p.a., from the date of petition till the date of realization against respondent Nos.l^to3.

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Appellant herein is no other than the Insurance Company, which was shown as the third respondent in the aforesaid O.P. 3. The parties to this Appeal will hereinafter be referred to as described before the Tribunal, for the sake of convenience.

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This Appeal is preferred by the third respondent/insurer, mainly challenging the validity of Ex.B-1 - insurance policy. As per Ex.B-1, the insurance policy covers only the driver of the Jeep but not the cleaner therein. Only on payment of the additional premium to the cleaner or to any other inmate therein, the Insurance Company can be held liable to pay the compensation. Apart from this, the petitioner did not have a valid driving license

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JS,J MACMA No.2452/2006

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to drive the Jeep; hence, the appellant/insurer is not liable to pay any compensation.

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The claimant's case, in brief, according to the averments^set out in the claim filed under Section 163-A of the MV Act before the Tribunal, is that the petitioner, who is a resident^{ofVedullavalasa} village, sustained injuries in the motor vehicle accident^thattook place on 09.12.2004 at 07:00 a.m. The petitioner was^acleanerof the jeep bearing No.AP 31 X 4887 at the time of accident. They started at Railway Bridge, Cheepurupalli to Raj am^andwhenthe Jeep reached the outskirts of Cheepurupalli, it dashed against a stationed Lorry bearing No.AP 28 U 8599. A case in^CrimeNo.146 of 2004, dated 09.12.2004, on the file of Cheepurupalli Police Station was registered for the offences under Sections 337, 338 and 279 IPC. As a result, the petitioner sustained injuries and, immediately, he was shifted to the Government Hospital, Cheepurupalli and from there to the Government Hospital, Vizianagaram for better treatment. Hence, the respondents, being driver, owner and insurer of the Jeep, are jointly and severally liable to pay the compensation. Hence, the claim.

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Respondent Nos.l and 2, being the driver and owner^ofthe Jeep, remained ex parte.

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JS,J MACMA No.2452/2006

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The third respondent, the Jeep insurer, filed a written statement resisting the petitioner's prayer and contending^thatthe petitioner, a cleaner at the time of the accident, drove the Jeep without having any valid driving license. The Jeep was not validly insured with the third respondent/insurer; as such, the compensation claimed by the petitioner was highly excessive^and unreasonable and prayed to dismiss the Petition.

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On behalf of the petitioner, petitioner himself was examined as PW.l and the Doctor who treated him was examined as PW.2 and got marked Exs.A-1 to A-9. On behalf of the contesting^third respondent/insurer, RW.l was examined and marked Exs.B-1 and B-2.

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The Tribunal, after hearing both sides and considering^the oral and documentary evidence on record, answered the issues in favour of the petitioner and awarded a sum of Rs.65,600/towards compensation, fixing the liability against all the respondents i.e., the driver, owner and insurer of the Jeep.

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Aggrieved by the order of the Tribunal, the unsuccessful third respondent/insurer filed the present Appeal.

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JS,J MACMA No.2452/2006

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Heard the arguments of learned Standing Counsel, appearing on behalf of the appellant/insurer, and the learned counsel, appearing on behalf of the first respondent/claimant.

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Now, in deciding the present Appeal, the simple question that falls for consideration is:

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Whether the Order of the Tribunal in O.P. No. 10 of 2005, dated 15.06.2006, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-1 Additional District Judge, Vizianagaram is sustainable under law and facts and whether there are any grounds to interfere with the same?

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POINT:

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As per Ex.A-2 - wound certificate, the petitioner is^around 21 years old at the time of the accident. Before the accident, he was hale and healthy and was engaged as a Cleaner in the Jeep bearing No.AP 31 X 4887 and used to earn Rs.2,500/- p.m. and Rs.50/- per day as batta. His right leg thigh was fractured^inthe accident and he underwent surgery and a rod was inserted^inhis right leg. PW.2 - the doctor, who performed the surgery, deposed that after going through the latest x-ray of the petitioner,^hefound that the petitioner has mal united fracture right femur^withmild

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JS,J MACMA No.2452/2006

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stiffness of right hip and knee joint with implants inside; the injury is grievous and it is difficult for the petitioner to sit and squat and climb the stairs, and that he cannot walk long distances and do hard work. Ex.A-9 is the disability certificate issued by the District Medical Board, Vizianagaram which shows that the petitioner has suffered 20% disability, which is partial permanent in nature. 14. Admittedly, the accident took place in the year 2004.^Atthe time of the accident, the petitioner was engaged as^{acleanerinthe} Jeep. Except for his oral testimony, he did not produce any document to prove his income. Therefore, the Tribunal^cametothe conclusion that as there was no independent evidence to prove that the petitioner was earning Rs.2,500/- p.m. but believing his version that he was working as a Cleaner in the Jeep,^atthetime of the accident, fixed the monthly income of the petitioner as Rs. 1,500/and took the age of the petitioner as 20 years; accordingly awarded Rs.57,600/(Rs. 18,000/- x 16 x 20%) as compensation under the head of loss of earnings.

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Be that as it may, the petitioner did not produce any^income certificate. However, by virtue of the nature of the work involved and also by taking into consideration the minimum wages

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JS,J MACMA No.2452/2006

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prevailing as on the date of the accident i.e., in the year 2004, the daily earnings of the petitioner can be fixed as Rs.lOO/-^andhis monthly earnings would come to Rs.3,000/- p.m., Rs.36,000/p.a. In the decision cited by the Hon’ble Apex Court in Sarla Verma and others v. Delhi Transport Corporation and another^, the appropriate multiplier applicable to the age group of the petitioner can be fixed as ‘18’. Now, the compensation payable to the petitioner under the head of loss of earnings^wouldcometo Rs.36,000/- X 18 X 20/100 = Rs. 1,29,600/-. Accordingly, the petitioner is entitled to the compensation of Rs. 1,29,600/-^under the head of loss of earnings. The amount of compensation^awarded by the Tribunal under remaining heads needs no interference.

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The vehicle's owner i.e.. the second respondent has appointed a driver to drive the vehicle. The vehicle's^driveranda third person were sitting in the Jeep at the time of^theaccident. The driver himself allowed the cleaner to drive the Jeep, which met with the accident and the petitioner/cleaner suffered with 20% partial disability. The doctor who operated the petitioner^hasruled out that the petitioner cannot attend heavy duties;^hecannotwalk for long distances and cannot squat. The petitioner is only 20

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1(2009) 6 see 121

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JS,J MACMA No.2452/2006

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years old at the time of accident with a lot of future ahead and should suffer from the disability throughout his life. The petitioner cannot be penalized for the mistake committed by the driver. Moreover, Ex.B-1 - insurance policy is valid from 24.11.2004 to 24.11.2005. As the petitioner has stepped into the^{driver'sshoes} without the knowledge of the vehicle's owner, as the policy was also in force as on the date of the accident, the insurance company cannot be exonerated from its liability. Under^Section 96(2)(b) of the M.V. Act, breach of specified condition of a policy is one of the grounds that can be pleaded in defence of^anaction against the insurance company. Admittedly, respondent^Nos.land 2, driver and owner of the Jeep, remained ex parte before the Tribunal. Appellant herein has not taken proper steps against the second respondent/owner of the Jeep and except pleading^thatthe petitioner was not having valid license to drive the Jeep, no other plea was taken by the appellant to establish breach of a specified condition of the Policy.

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A Division Bench of the Madras High Court, while dealing with similar situation in Kanniappa Nadar v. Jayapandi^and

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JS,J MACMA No.2452/2006

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others^, by referring to various decisions of the Hon’ble Apex

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Court, held as follows:

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Learned counsel for the appellant then cited the decision of a learned single judge of the Jammu and Kashmir High Court reported in Oriental Insurance Co. Ltd. v. Rajinder Kumar (1996 A.C.J. 486). In that case, the vehicle was entrusted by the owner to its driver, who was a duly licensed driver. The^{licenseddriver} by mistake, carelessness or omission or in neglect of his duties, allowed the vehicle to be driven by a person who was not a licensed driver. It was held that the insured could not be blamed for this as he, on his part, had taken all care to^{ensurethatthe} vehicle was entrusted to licensed driver and if such a licensed driver committed any breach, that could not be a ground available to the insurer to avoid its liability. The appeal filed by the insurance company was dismissed.”

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The Hon’ble Apex Court, while dealing with similar situation, in New India Assurance Company, Shimla v. Kamla and

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others, held as follows:

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“23. It is advantageous to refer to a two-Judge Bench of^this Court in Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and ors. {1987 (2) SCC 654}. Though the said decision related to the corresponding provisions of the predecessor Act (Motor Vehicles Act, 1939) the observations made in the judgment^are quite germane now as the corresponding provisions are materially the same as in the Act. Learned Judges pointed out that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insuranqe

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2 (AIR) 1997 Madras 236

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3 2001 (4) SCC 342

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JS,J MACMA No.2452/2006

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is not for the purpose of promoting the business of the Insurance Company but to protect the members of the community^who become sufferers on account of accidents arising from use of motor vehicles. It is pointed out in the decision that such protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependents of the victims) of the accident. This is the reason for the legislature making it prohibitory for^{motorvehicles} being used in public places without covering third party risks by a policy of insurance.

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19'. The Tribunal has elaborately dealt with the issue and gave a finding that the first respondent is the original driver^and the petitioner herein is the cleaner of the Jeep, who was driving at the time of accident. The petitioner met with the accident while driving the Jeep is an admitted fact, which cannot be disputed. The Petition before the Tribunal was filed under Section 163-A of the M.V. Act, under which provision negligence need not be proved or established. The said provision was alleviated with the grievance of those who suffered an accident owing to their own mistake. Hence, in view of my foregoing discussion, the Appeal fails.

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In the result, the Motor Accident Civil Miscellaneous Appeal is dismissed. However, taking into consideration the facts and circumstances, keeping in mind the minimum wages prevailing^on the date of accident and the law laid down by the Hon^ble Apex

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11 JS,J MAGMA No.2452/2006

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Court in Nagappa v. Gurudayal Singh^, the compensation awarded by the Tribunal is enhanced from Rs.65,600/to Rs. 1,37,600/(Rs. 1,29,600/+ Rs.5,000/+ Rs.3,000/-) by holding that the respondent Nos.l to 3 are jointly and^severally liable to pay the compensation amount by directing them to deposit the difference of the enhanced compensation^amount of Rs.72,000/- with interest at 7.5% p.a. from the date of petition till the date of realization within one month from the date of this Judgment and on such deposit the petitioner is entitled to withdraw the entire compensation amount with up to date interest. No order as to costs.

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Consequently, Miscellaneous Applications pending, if any shall stand closed.

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^(2003) 2 see 274

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SDI- K SRINIVASA RAJU ASSISTANT REGISTRAR

//TRUE COPYII

SEC TON OFFieER

To,

The Chairman, Motor Accidents Claims Tribunal cum I Additional District Judge, Vizianagaram, Vizianagaram District (with records if any)

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One CC to Sri. B Paramesewara Rao Advocate [OPUC]

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One CC to Sri. Taddi Nageswara Rao Advocate [OPUC]

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The Section Officer, VR Section, High Court of Andhra^Pradeshat Amaravathi

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Three CD Copies

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Stu vna

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HIGH COURT DATED; 04/10/2024

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JUDGMENT +DECREE

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MACMA.No.2452 of 2006

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(x 3 1 JAN M25 J
^ ^ Current Seotum ^
%I^er.ATC»<S55^

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DISMISSING THE MACMA WITHOUT COSTS

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAN/ATI

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FRIDAY ,THE FOURTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR

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is
4^ <br>♦ ■ 4

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PRESENT

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THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2452^OF2006

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Between:

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The Oriental Insurance Company Limited, Rep. by its^{DivisionalManager,} Divisional Manager, Dwaraka Nagar, Visakhapatnam

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...Appellant/Respondent -3

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AND

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Muttireddi Mahesh, S/o Lakshmi Narayana, Cleaner^{R/oVedullavalasa} Village, Garividi Mandal, Vizianagaram Dist.

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B.Ganesh, S/o Latchaiah Driver of Jeep No. AP 31^{X4887R/oBoddam} Village, Rajam Mandal, Srikakulam District.

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B. Appa Rao, S/o late Appala Naidu Owner of Jeep^No.AP31X4887 R/o 37-10-155, Ayyappa Nagar, Visakhapatnam.

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...Respondents/R-1 & 2

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Appeal filed under Section 173 of M.V Act, being aggrieved^bythe order and decree passed in O P No. 10/2005 on the file^{oftheChairman,} Motor Accidents Claims Tribunal cum I Additional District Judge, Vizianagaram dated 15-06-2006.

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Order and Decree of the Lower Court and material papers in the petition and upon hearing arguments of Sri B.Parameswara Rao, i \ Appellant and of Ms. Sowmya representing Sri Taddi Nageswara Rao, Advocate for Respondent No.1.

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This Court doth Order and decree as follows:

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That the Motor Accident Civil Miscellaneous Appeal be and is hereby dismissed;

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That the compensation awarded by the Tribunal be and is hereby enhanced from Rs.65,600/- to Rs. 1,37,600/-;

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That the Respondent Nos.1 to 3 be and are hereby held jointly and severally liable to pay the compensation amount;

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That the Respondent Nos.1 to 3 be and are hereby directed to deposit the difference of the enhanced compensation amount of Rs.72,000/with interest at 7.5% p.a. from the date of petition till the date of realization within one month from the date of this Judgment i.e., 04/10/2024 :

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